Acceptance of an offer

 An offer must accepted in order to have a contract.

 Acceptance establishes the required vinculum juris
between the parties.
 It is because of acceptance that we can talk of
consensus ad idem, or the coincidence of wills, and
recall that contracts are enforced partly because
there was consensus between the parties.
 Acceptance is an assent to the terms of the offer.
 As in the case of an offer this may be indicated,
orally, in writing, or by conduct. Nyabienda v AG
2001 (2) BLR 143 is an example of tacit acceptance.
Who should accept?
 If an offer is addressed to a particular person, only
that person may accept.
 Recall however that some offers are addressed to the
general public. In such cases any member of the
general public may accept: Bloom v American Swiss
Watch Co.
 Also recall from Hersch v Nel that some options give
rise to assignable contractual rights.
 The offer in such cases must indicate explicitly that
only the offeree must accept if offeror wishes to
prevent cession of rights.
Modes of Acceptance
 If a mode of acceptance is indicated, and the
intention of the offeror so suggests, then only that
mode must be utilised.
 In some situations the intention of the offeror may
not be to prescribe a mode of acceptance, but to
suggest expedition, for eg., a requirement to
respond by “return post”. In such a case, more
expeditious mode of communication may be utilised,
for eg., a fax.
 An example of a prescribed and mandatory mode of
acceptance would a requirement to accept an offer
of employment by signing a specified written
document: Nindi v The University of Botswana, 2005
(1) BLR 439
Quiescence is not
Acquiescence
 If the mode of acceptance is not indicated, still, there
must be some indication or signification of
acceptance.
 The element of consensus requires that at very least
something must be done to signal acceptance of the
offer.
 Silence is not acceptance. However, where one has
a duty to act, silence, or not doing anything might be
deemed sufficient acceptance of the offer.
 These aspects of mode of acceptance may be of
practical relevance to the handling of unsolicited
goods.
Unambiguous, unequivocal
and unqualified acceptance
 Acceptance must be unambiguous, unequivocal and
in terms of the offer.
 Equivocation, or an attempt to vary the terms of the
offer, suggest that the offeree is uncertain or that
negotiations are incomplete.
 A qualified acceptance is regarded as rejection of the
offer, which thereby lapses, and the submission of a
counter offer, which the other party is free to accept
or reject.
 If the counter offer is rejected, the original offer,
having lapsed, will not automatically revive:
Watermeyer v Murray, 1911 AD 61.
Communication of Acceptance
 The communication of an acceptance of the offer by
offeree is generally required.
 It is essential for consensus and the establishment of
animus contrahendi.
 The offeror may however dispense with the need to
be informed of the acceptance of the offer. This may
be the presumed intention of the offeror in the reward
cases, in so far as embarking upon the challenge is
concerned.
 Communication of the acceptance of the offer may
also assist in the localisation of the contract. A
contract may be deemed concluded at the time and
the place where the acceptance is communicated.
Communication of Acceptance
through the Post
 The traditional method of communicating, through
an exchange of posted letters, has given rise to
difficult cases and special rules in both English law
and South African law.
 The problems and rules can be appreciated from the
Cape Explosives case.
 The central issue in two related cases was whether
contracts were concluded in Cape Town, or
somewhere else, so that the court in Cape Town
could be seized of a contractual dispute that had
arisen.
The Cape Explosives Case
cont.
 In the first case, a letter of offer was despatched
from the Transvaal, and a letter of acceptance
posted in Cape Town.
 In the second case the letter of offer was despatched
from Durban, and an acceptance again posted form
Cape Town.
 The court held that the contracts in both cases were
concluded in Cape Town, where letters of acceptance
were posted.
 The Court surveyed several possibilities, before
settling for the so called mailbox rule.
Cape Explosives Conti.
 The first possibility canvassed is that a contract would come
into existence as upon acceptance of an offer.
 The second possibility is that a contract comes into existence
upon the posting of a letter of acceptance.
 The third possibility is that the contract would come into
existence when the acceptance letter is received.
 The fourth possibility is that the contract comes into existence
when the letter of acceptance is brought to the attention of the
offeror.
 The Court held that the balance of practical convenience
favoured the second theory.
Cape Explosives Cont
 The AD confirmed the correctness of the Cape Explosives case
in Kergeulen’s Case.
 The mail box rule is odd. It contradicts and ignores the
requirement for consensus.
 It can only apply where the intention was clearly to use the
post, and that the rule should apply.
 It also applies only where the postal system is functioning
normally, and a correctly stamped and addressed letter was
posted.
 The theory or rule to apply in most situations would be one that
confirms or reinforces the importance of consensus.
Telegrams
 This is a rather old mode of communicating.
 It involves using the post.
 In consequence, the mail box rule was regarded as
applicable in Yates v Dalton.
 The facts and conclusion in this case expose another
reason for restricting application of the mail box rule.
 It was not possible in this case to effectively
withdraw an acceptance by a quicker means of
communicating, after an acceptance had been
posted.
Telephone
 In Woolmer v Rees the Court held by way of
obiter that where communication is by
telephone the contract would be concluded
where an acceptance is uttered.
 In Tel Peda Ltd v Van Zyl, the court disagreed
with Woolmer v Rees, and held, as in Entores
Ltd v Miles Far East Corporation, that a
contract should be concluded where an
acceptance is heard.
Other Means of
communicating
 In the Entores Ltd case, Lord Denning held that
telephone and telex were instantaneous means of
communication. There was no good reason for
departing from the normal rule that an acceptance
must be heard.
 The Entores Ltd case was applied by the House of
Lords in Brinkbon v Stahag to communication by
telex.
 The English cases probably suggest how we should
assess modern means of communicating.